LegisBlog #3: Why does the ACLU support two-party recording laws (but is neutral on HB330)?

Earlier this week, attention turned to a new bill at the Utah legislature that would make Utah a “two-party recording” state. The ACLU's position on this bill might surprise you.

Why does the ACLU support two-party recording laws?

HB330, sponsored by Rep. Lowry Snow (R-St. George), would make it illegal for one party to record a conversation without the other party’s knowledge—a reality in 12 states as diverse as Maryland and Montana.

Early media coverage of HB330 focused on prominent supporters of the bill, including the Salt Lake Chamber of Commerce, and allegedly, the LDS Church. Citing the role of secret recordings in exposing political scandals and in protecting vulnerable populations, some Utah reporters and media organizations are against the law. Most people assumed the ACLU of Utah would oppose this law, too.

But we don’t. In fact, we are neutral on HB330 as introduced.

Here’s why.

Privacy is a key focus of the ACLU. Therefore, we support measures that enhance and protect the right to privacy for individuals. While we are disappointed that HB330 doesn’t extend two-party consent to situations when the government records your conversations without your knowledge (e.g., “under the color of law”), we do appreciate how it extends privacy rights for Utahns in the realm of private communications. This squares with national ACLU policy on recording and wire-tapping dating back to the 1970s that opposes any conversation being recorded without the permission of all parties. While it’s true that the 1970s were a long time ago—especially in terms of technology—the fundamental right to privacy remains the same. Plus, although this bill restricts your ability to record other people, the reverse is also true. The bill protects your right to privacy by preventing others from recording you without your consent. You can’t have one protection without the other restriction.

In addition, the ACLU of Utah recognizes how this bill includes carve-outs that restore “one-party consent” to record government officials and law enforcement officers, even when those conversations are private. This exception is provided in the bill as follows: “[One-party consent rule is restored] when the person making the recording reasonably believes that the communications: …(viii) consists of a statement by a public official or public employee made in the performance of the public official’s or public employee’s official duty”.)

HB330 contains similar protections for whistle-blowers who make private recordings to substantiate wrong-doing, or for people who believe they are being harmed or harassed. We believe this situational exemption is essential, especially in relation to domestic violence and abuse, and it applies to both minors and adults. For example, the bill restores “one-person consent” for recording in a variety of situations, including where a person “reasonably believes” there is an emergency, threats of harm or extortion, ongoing pattern of harassment, obscene language, evidence of a crime, or abuse. See lines 102-118 of the bill for the exact wording.

So if the ACLU of Utah likes the enhanced privacy created by HB330, why aren’t we supporting it?

Because HB330 also expands criminal penalties to behavior that was not previously a crime in Utah. We do not support legislation that adds new, harsher penalties for actions that were previously legal, and HB330 violates that directive.

In conclusion, while HB330 doesn’t provide protection from government invasion of privacy, it also doesn’t threaten individuals who have legitimate reasons for recording without the other party’s consent.

So that is why the ACLU of Utah is neutral on HB330 as it was introduced. But be assured we will pay special attention to any amendments that seek to upset this delicate balance of privacy.